Ever since the U.S. Supreme Court announced Friday that it will review the Prop 8 case and another case challenging the Defense of Marriage Act (DOMA), speculation has been running amuck in the LGBT blogosphere. What does it mean? What if we lose? What do we gain if we win? As with many legal matters, especially for us non-lawyers, the issues are are complicated. A major newspaper, in fact, has just published an article that spreads a misconception about what the Supreme Court review could mean for same-sex parents.
Cathy Lynn Grossman, who covers religion, ethics and spirituality for USA Today, wrote “Who’s Mom? Legally, biologically, it’s no easy answer.” Much of the article discusses the various forms of family creation today, and the patchwork of laws that hold us together. So far, so good. (Sure, she quotes an opponent of same-sex parents, but she also quotes several same-sex couples.)
Then she says, “If the U.S. Supreme Court redefines legal marriage, that will affect the legal rights of parents as well.”
Um. No. Or at least not with the cases currently before the Court.
Neither case says anything about parental rights. The Prop 8 case, Hollingsworth v. Perry, looks only at the legality of same-sex marriage in California, where same-sex couples are already recognized as parents. And the DOMA case, Windsor v. U.S., only addresses Section 3 of DOMA—whether the federal government must recognize legal marriages of same-sex couples. It doesn’t tackle Section 2, which says that states don’t have to recognize marriages of same-sex couples from other jurisdictions.
Here’s the thing. In most states that recognize same-sex relationships (marriage, civil unions, domestic partnerships), same-sex parents may both go on the birth certificates of any children born to one of them. The non-biological parent’s right to do so is dependent on the recognition of the parents’ relationship to each other, however. If the couple travels to a jurisdiction where their relationship is not recognized, the non-bio parent’s right to be on the birth certificate—the right to be a legal parent—may not be recognized, either. Hence the need for second-parent adoptions, which are all about the relationship of the non-bio parent to the child, and which are recognized by all other states. (A federal judge in 2006 struck down an Oklahoma law that prevented the state from recognizing adoptions by same-sex couples from other jurisdictions.)
Therefore, it is Section 2 of DOMA that is making us do second-parent adoptions. Section 3, which is the section before the Court, has nothing to do with parental rights.
“We had to [do a second-parent adoption]. Adoption is legally recognized in all states, but our marriage isn’t” unless the Defense of Marriage Act is overturned, says Appel, executive director of Our Family Coalition, which offers support services for same-sex family parents and prospective families. “If we cross state lines and there’s an issue, like someone is in the hospital, we need proof of our parental rights.”
Appel is right as far as DOMA being overturned—but only if DOMA is completely overturned. Grossman doesn’t—crucially—note that the cases now before the Supreme Court would (at best) only overturn part of DOMA, and not the part that would affect second-parent adoptions.
Also, even if both Section 2 and Section 3 are someday overturned, I don’t believe that would in any way force states to allow same-sex couples (or unmarried couples of any type) to adopt. Many still don’t.
That is not to say that the cases currently before the Court, if ruled in our favor, won’t tremendously benefit same-sex parents and our children, financially and emotionally. But they won’t (at least as I understand them) affect our parental rights. It’s irresponsible to imply otherwise.
The advice for same-sex parents to get second-parent adoptions, even if married, still remains—and will remain, even if the Supreme Court rules favorably in the two marriage cases before it. (Not to mention that they’re probably still a good idea for international travel to jurisdictions that don’t recognize our marriages.)
For a look at what the cases could affect, check out this summary from UCLA’s Williams Institute. Note that it says nothing about parenting.